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2018 DIGILAW 1580 (GAU)

Chumbeni Lotha v. State of Nagaland

2018-11-01

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Ms. Esther, learned counsel for the petitioner. Also heard Mr. N. Mozhui, learned Standing Counsel for the Vigilance and Anti-Corruption as well as Mr. V. Zhimomi, learned Government Advocate appearing for the State respondents. 2. The petitioner was initially appointed as a Female Attendant on an ad hoc basis as per the order dated 23.06.2008 of the Principal Director, Health and Family Welfare, Nagaland and was accordingly, posted on the town dispensary at Wokha. Subsequently, by the order dated 21.02.2007, also by the Principal Director, Health and Family Welfare, Nagaland, the service of the petitioner was regularized in the scale of pay of Rs. 2550-55-2660-60-3200 w.e.f. the date of her appointment. 3. In the year 2010, a show cause notice bearing No. DHFW-3/117/MA/WKA/2005 dated 8.10.2010 was issued to as many as 73 number of employees under the Chief Medical Officer, Wokha. The show cause notice indicated that the appointments of the employees named therein were made without there being any sanctioned post. The show cause notice further required the concerned persons to show cause as to why their services should not be cancelled/terminated. The aforesaid matter was referred to the Vigilance Commission for conducting an enquiry. In the process, the scope of the inquiry by the Vigilance Commission was extended to a certain extent and accordingly, 95 employees in the establishment of the Chief Medical Officer, Wokha were required to appear before them for verification of their documents. The inquiry process initiated by the Vigilance Commission resulted in submission of a final report bearing No. RC/2011 dated 04.12.2014. The final report also contained that the appointment letter in respect of the present petitioner was suspected to be forged. 4. The said report of the Vigilance Commission which pertains to several other employees, including that of the petitioner, also contained that as the appointees under the forged signature of the appointing authority did not have any legal document to support their claim, the department was advised that they may go ahead with the termination of the services of the employees named in the report. Pursuant to such final report by the Vigilance Commission, the service of the petitioner was terminated by the order dated 04.11.2014 of the Principal Director, Health and Family Welfare, Nagaland. The order of termination of 04.11.2014 has been assailed in this writ petition. 5. Pursuant to such final report by the Vigilance Commission, the service of the petitioner was terminated by the order dated 04.11.2014 of the Principal Director, Health and Family Welfare, Nagaland. The order of termination of 04.11.2014 has been assailed in this writ petition. 5. Ms Esther, learned counsel for the petitioner raises the contention that the order of termination dated 04.11.2014 in respect of the petitioner is unsustainable inasmuch as the petitioner, who was a Government servant under the Government of Nagaland is governed by the Nagaland Service Discipline and Appeal Rules, 1967 and therefore, it is mandatory on the part of the authorities to follow the procedure prescribed therein before any such order for termination can be effected. 6. Mr. V. Zhimomi, learned Government Advocate to the contrary, raised the contention that the appointment of the petitioner was found to be forged and it had passed through a screening test conducted by the Chief Secretary and the order of termination is justified for that reason alone. 7. Mr. N. Mozhui, learned Standing Counsel for the Vigilance Commission on the other hand contends that the matter was referred to the Vigilance Commission for conducting an inquiry and upon appropriate inquiry being conducted, the final report dated 4.12.14 was submitted and in the said final report, a recommendation was made for termination of the service of the petitioner. 8. We have considered the submissions of Mr. V. Zhimomi as well as Mr. N. Mozhui, learned counsel respectively appearing for the State respondents and the Vigilance Commission. The submission of Mr. V. Zhimomi that the order of termination was effected because the screening committee comprising of the Chief Secretary had found that the appointment letter of the petitioner was forged, on its own cannot be a ground to terminate the service of the petitioner without adhering to the required procedure prescribed by law. The said reason may be a reason for terminating the service but the reason also has to be established in an appropriate proceeding to be conducted under the Rules, and merely because the authorities had suspected that the appointment of the petitioner was forged, that itself cannot be the sole basis to terminate the service without adhering to the procedure prescribed by law. 9. As regards the contention raised by Mr. 9. As regards the contention raised by Mr. N. Mozhui, learned Standing Counsel for Vigilance Commission, we have taken into account that it was merely a recommendation made by the Commission that the service of the petitioner may be terminated but such recommendation also cannot be a basis by itself for effecting such termination without following required procedure under the law. 10. Having said so, we also take note of the procedure for imposing a penalty including the penalty of termination as prescribed under Rule 9 of the Nagaland Service Discipline and Appeal Rules, 1967. The Rule 9 of the said Rules provides for an elaborate procedure including the requirement of issuing a show cause notice, giving liberty to make written statement of the delinquent and thereupon to hold an inquiry in the manner as prescribed therein. Only upon adhering to such procedure, the subsequent stage of either effecting and not effecting an order of termination can be taken. In the instant case we have perused the materials available on record and are unable to arrive at a conclusion that the required procedure prescribed under Rule 9 of the Nagaland Service Discipline and Appeal Rules, 1967 was followed. In a plethora of decisions by the Supreme Court as well as the High Court, it has been upheld that the procedure prescribed under the respective Discipline and Appeal Rules, for imposing a penalty prescribed therein is a mandatory procedure and any non compliance of such procedure calls for interference of any order passed without adhering to the required procedure. In the instant case, we have already concluded that the order of termination dated 04.11.2014 was made without following the required procedure under the Nagaland Services Discipline and Appeal Rules, 1967. 11. In view of such conclusion, the order of termination of 04.11.2014 is accordingly set aside. It is farther provided that as the order of termination had been interfered on a technical reason of the required procedure having not been followed, the department may proceeded against the petitioner but only by strictly following the procedure prescribed under the Nagaland Services Discipline and Appeal Rules 1967. Upon the order of termination being set aside, it is left upon the authorities of the department to determine as to how to service of the petitioner has to be treated hence from. Upon the order of termination being set aside, it is left upon the authorities of the department to determine as to how to service of the petitioner has to be treated hence from. Consequent upon the order of termination being set aside the petitioner be provided with all consequential relief that she may be entitled under the law. 12. In terms of the above, the writ petition stands allowed.